First published July 2, 2003, in the Chicago Free Press.
It was closer than you think. Although the U.S. Supreme Court declared Texas' (and three other states') same-sex sodomy law unconstitutional by 6 to 3, it was by a narrower 5 to 4 majority that the Court declared the heterosexual-inclusive sodomy laws of nine other states unconstitutional and reversed the opprobrious 1986 Bowers v Hardwick decision upholding Georgia's sodomy law.
And the Court reversed Bowers only because Justice Anthony Kennedy, who had written an important gay-supportive, equal protection opinion in Romer v Evans, passed by his earlier argument, which would have been sufficient to strike down the Texas law, to reconsider Bowers, find it deficient in virtually every respect, and declare that Bowers failed to recognize - and the Texas law violated - a right to liberty inherent in the Due Process Clause of the 14th Amendment.
In sentences that will become famous, Kennedy wrote:
- "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spacial and more transcendent dimension."
- "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."
- "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."
Dissenting Justice Antonin Scalia, who is clearly the Vatican's man on the Supreme Court, ranted impotently and (since we won) amusingly about "homosexual sodomy," "homosexual activists," "the so-called homosexual agenda," and flamboyantly charged that "the court has taken sides in the culture war."
But Scalia, for all his repute for great legal learning, had nothing to offer by way of arguments except: a) a majority should have a right to force others to obey their moral rules no matter what, and b) allowing "homosexual sodomy" removes the only barrier to homosexual marriage. Is there a genuine state interest in criminalizing same-sex sodomy per se? Scalia offered none.
For the rest, Scalia's dissent consisted of ineffective counter-punching, evasions, misrepresentations, sophistry, sneers and dire predictions. There is an old lawyers' admonition that when you don't have the facts or the law on your side, bang on the table. What Scalia wrote was the judicial equivalent of banging his spoon on his high chair.
Legal reasoning aside, a careful reading of the opinions makes clear that the fundamental difference between the pro-gay majority and the anti-gay minority is the majority's willingness to acknowledge - and take legal account of - the fact that gays and lesbians are types of persons just as heterosexuals are and that sexual orientation is a core aspect of a person's being.
Justice O'Connor, whose concurring opinion, though limited to an equal protection argument, is the best argued and best written, explained the significance of this:
- "Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by (the Texas law)."
- "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class."
- "The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else with moral disapproval as the only asserted state interest for the law."
The difference in approach is signaled by the fact that Kennedy wrote of "homosexual persons," "homosexuals," and "persons who were homosexual." Similarly, O'Connor wrote of "homosexuals," "homosexual persons," "a same-sex sexual orientation," "being homosexual," and even (as above) "gay persons."
By contrast, Scalia wrote almost exclusively of acts: "homosexual sodomy," "homosexual conduct," "consensual sodomy," "homosexual acts," "homosexuality," "sodomy" and "those who engage in homosexual acts."
If the issue of sodomy laws is now settled, can we find anything in this decision for future litigation. Yes, indeed.
"Don't ask, don't tell" and the military's sodomy law are more vulnerable. If neither is quite unconstitutional on the basis of Kennedy's due process argument, they are arguably so under O'Connor's equal protection argument, which Kennedy declared "tenable."
Although O'Connor avoided discussing heterosexual-inclusive sodomy laws like the military's, her argument implies they too would be unconstitutional because of their disparate impact on gays and heterosexuals. Civilian deference to the military has its limits.
Kennedy was canny enough to draw attention to the possibility of gay marriage - without the red flag of naming it - and invite litigation by pointedly leaving the question open, referring to "a personal relationship that, whether or not entitled to formal recognition in the law...."
But the learned Scalia himself opined that O'Connor's reasoning on equal protection grounds "leaves on pretty shaky ground state laws limiting marriage to opposite-sex couples." However that may be, the Defense of Marriage Act is almost surely dead.